447.

Brunner vs. American Tel. & Tel. Co., 151 Pa. St.,

Guinney vs. Hand, 153 Pa. St., 404.

Madera vs. Electric Railway Co., 192 Pa. St., 542.
Brennan vs. Merchants & Co., 205 Pa. St., 258.

The jury, having decided for the plaintiff, practically decided that the servants and employees of the defendant company acted within the scope of their authorities.

The next proposition then to be determined was the matter of damages, and whether such damages were to be compensatory only, or whether the damages were to be punitive or exemplary.

The rule as to compensatory damages is clearly set forth in Dugan vs. B. & O. Railroad Co., 159 Pa. St., 248, and Light vs. Electric Railway Company, 4 Sup. Ct., 427, and is as follows: For false imprisonment, as for trespass in improperly ejecting by the employees of a railroad company, the damages include, in addition to actual expenses incurred, compensation for loss of time, interruption of business, bodily or mental suffering, humiliation and injury to feelings.

The jury found in favor of the plaintiff in the sum of $125. It is not for the Court to guess whether the damages allowed were compensatory or were punitive. If the jury fixed the damages on the theory that they were compensatory only, then the Court is of the view that such damages are not excessive. It was for the jury to determine the questions of fact involved, and the jury having found in favor of the plaintiff the Court is loathe to set aside the verdict for any of the reasons filed.

Now, April 6, 1914, motion for a new trial overruled.

BACHMAN vs. RYLE.

Equity - Jurisdiction-Pending Action in Law.

Equity will attach to correct and reform a deed, even though an action in ejectment is pending at the time.

In the Court of Common Pleas of Lehigh County, Sitting in Equity. Alfred P. Bachman vs. Reuben Ryle. Bill in Equity. Demurrer.

Thomas F. Diefenderfer, for Complainant.

A. G. Dewalt, for Respondent.

Groman, P. J., April 6, 1914. This matter comes before the Court on bill of complaint and demurrer thereto. The material facts averred in the bill are thus admitted and are to be taken as verity. Bitting's Appeal, 105 Pa. St., 517.

The principal question raised by the demurrer and to be determined is: Has a Court of equity jurisdiction? It has been held that equitable jurisdiction does not depend on the want of common law remedy, for whilst there may be such a remedy it may be inadequate to meet all the requirements of a given case or to effect complete justice between the contending parties, hence the exercise of chancery powers must often depend on the sound discretion of the Court. Bierdower's Appeal, 11 Out., Page 14. Mortland vs. Mortland, 151 Pa. St., Page 593. Johnston, et al., vs. Price, et al., 172 Pa. St., Page 427.

It is contended by the defendant that because an action of ejectment is now pending in the Court of Common Pleas of Lehigh County, wherein the title to the real estate in this proceeding also comes in question, and in which action the defendant herein is the plaintiff, and the complainant in this bill the defendant, that, therefore, a court of equity has no jurisdiction. We must not lose sight of the fact that in this proceeding the complainant prays for a decree to correct and reform the deed for the real estate referred to in both proceedings, and that the action of ejectment is founded on the identical deed sought to be reformed. We have a line of authorities holding that where a court of equity would afford the best and most convenient remedy for a just disposition of the question involved, jurisdiction would attach. Kirkpatrick vs. McDonald, 11 Pa. St., 393. Brush Electric Company's Appeal, 114 Pa. St., 574. Warner vs. McMullin, 131 Pa. St., Page 370. Drake vs. Lacoe, et al., 157 Pa. St., Page 17.

The Court is of the view that a just disposition of the questions involved would be best subserved by a court of equity and that jurisdiction attaches.

Now, April 6, 1914, demurrer overruled and defendant ordered to answer over within thirty days of this order.

ESTATE OF SARAH J. STINE, DECEASED. Auditor's Report-Findings of Fact-Exceptions to Findings of Fact.

The Orphans' Court will not disturb the findings of fact of an Auditor, unless for manifest error. The Auditor's findings have the same effect as a verdict of a jury in the Court of Common Pleas.

In the Orphans' Court of Lehigh County. In the matter of exceptions to the auditor's report in the Estate of Sarah J. Stine, deceased.

A. G. Dewalt and Max S. Erdman, for Exceptants.
Thomas F. Diefenderfer, for Accountant.

Groman, P. J., March 16, 1914. The first, second, seventh, eighth and ninth exceptions filed to the auditor's report in the above estate hinge on the disposition of the second exception, which is as follows:

"The auditor erred in finding as a fact, that Lewis Lenhart paid the rent for the hotel, or rendered an equivalent therefor."

Upon an examination of the auditor's report we find the following finding of fact:

"Your Auditor is therefore of the opinion that Lewis S. Lenhart has fully accounted to the decedent for the use of the hotel property, as well as for the rentals received from the Stine homestead and the small buildings appurtenant to the hotel property."

Courts are loath to set aside the findings of fact reported by an auditor, where such findings are warranted by the proof submitted before the auditor. Such findings have the same weight as the verdict of a jury, and are not to be set aside except upon grounds that would justify the Court of Common Pleas in granting a new trial.

Hottenstine's Appeal, 2 Grant, 301.

Courts should not hastily set aside the conclusions of an auditor; this only ought to be done upon the discovery of some obvious error, or where the preponderance of the testimony fails to sustain the findings of the auditor, in which event, if it were the verdict of a jury in the Court of Common Pleas, a new trial ought to be granted.

Thompson's Appeal, 103 Pa. St., 607.

It is not necessary to cite other authorities. The exceptants failed to show error in the findings of fact as

found by the auditor, or that his findings were not warranted by the preponderance of the testimony.

The Court is of the view that the auditor was warranted in his finding of facts, as well as his conclusions of law. Such being the case, the aforesaid exceptions to the auditor's report hereinbefore referred to cannot be sustained.

The fourth exception to the auditor's report is as follows:

"Fourth: The auditor erred in distributing to Louisa Lenhart for services rendered to decedent in the sum of $1404, as the same is excessive."

The auditor finds as follows:

"In the opinion of your auditor, the case is an extraordinary one, and the testimony of the witnesses is sufficient to support the claim of Mrs. Lenhart."

The only question raised by the exception is that the amount distributed was excessive. In other words, the exceptants admit the justness of the claim but deny that the auditor in his finding was justified in distributing the above amount to the claimant, such amount being excessive.

Here we again have a finding of fact equivalent to the verdict of the jury. The auditor has fixed the amount, and the same reasons set forth in dismissing the exceptions heretofore referred to apply to this exception. The reasons set forth in the auditor's report, and the authorities cited to sustain his conclusion, are so cogent that if the verdict had been that of a jury in the Court of Common Pleas, the Court could not consistently set aside such verdict. The exception cannot be sustained.

Exceptions have also been filed to the auditor's fees, amounting to $250. Our rules of court require an auditor to certify to the number of days actually spent; but this rule, it seems, is more respected in the breach than in the observance. It appears, however, that a number of meetings were held in this matter. The report is quite comprehensive, showing that considerable time and attention were given to the questions raised before the auditor. Further, the report shows a careful considerattion of all matters involved, and is more full and complete in every detail than the average report of an auditor. The Court

has reached the conclusion that this exception cannot be sustained.

Now, March 16, A. D. 1914, for reasons herein before set forth, all the exceptions to the auditor's report are hereby dismissed.

PERLMAN vs. MARTIN.

Motor Vehicles-Act of April 27, 1909, P. L. 272, Section 24-Service Outside of County.

The sheriff of the county where suit is brought cannot serve a summons outside of his own county in civil actions for damages arising from the use and occupation of motor vehicles, and such service, if made, will be set aside.

In the Court of Common Pleas of Lehigh County. No. 21 June Term, 1913. Meyer Perlman and Anna Perlman, his wife, vs. W. E. Martin. Rule to amend sheriff's return.

A. G. Dewalt and Ralph H. Schatz, for Plaintiffs.
Thomas F. Diefenderfer, for Defendant.

Groman, P. J., April 6, 1914. This matter comes before the Court upon petition and answer. No depositions were taken; it appears from the facts as set forth in the petitions and answers to the rules, where such answers have been filed, and a statement of counsel during the argument, that the facts not specifically denied are to be taken as established without depositions. The Court will therefore dispose of this matter on that theory.

The rule to amend the sheriff's return, if allowed, would result in an amendment of his return of service of the writ, and would set forth that he served the writ in Northampton County, thus corroborating and verifying the statement made by the defendant in his petition for a rule to show canse why the service of the writ should not be set aside. The latter petition was presented and an order made thereon on November 10th, 1913, and was made returnable ten days after service; service was accepted November 13th, 1913, but no answer filed, so that we must assume that the facts alleged in the petition of defendant for a rule are true.